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PI and Civil Litigation

Law - practice - procedure

30 DEC 2014

Lougheed v On the Beach Ltd [2014] EWCA Civ 1538

Slipping accident – accidents abroad – witness evidence – burden of proof

Tomlinson LJ, Floyd LJ, Ouseley J

27 November 2014

 The claimant slipped and fell down a flight of steps at a hotel in Spain. The Court of Appeal had to determine whether the hotel had acted with reasonable care and skill in accordance with local standards, and where the evidential burden should lie in respect of this.

The claimant slipped on a flight of granite steps which led from the hotel pool to the reception area. The steps were wet and she fell and suffered injuries, for which she argued the defendant travel company was liable.

 The court did not hear expert evidence as to local standards of care, as the claimant’s application to adduce expert evidence from a Spanish lawyer was refused. The judge in the first instance found for the claimant, relying on the evidence of the hotel manager that it was not acceptable for the steps to be wet and that there were no specific Spanish standards on cleaning and monitoring the steps relevant to the case. As this was the only evidence on local standards, the evidential burden of proof was effectively placed on the defendant. The defendant argued that this was an error in law, and appealed.
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The appeal judge held that the hotel manager’s assertion that the steps should not have been wet was not enough in and of itself to prove lack of reasonable care and skill. Instead, it begged the question as to the action that should have been taken to identify and remove spillages and hazards. The court was unable to draw inferences as to this because it did not have sufficient evidence of Spanish standards. This was a point on which the evidential burden should lie with the claimant, not the defendant. The trial judge was not justified in finding that the accident would not have happened had reasonable care and skill been exercised. The evidential burden on the claimant was considered discharged on the evidence and the appeal was therefore allowed: Wilson v Vest Travel Ltd [1993] 1 All ER 353 applied, Ward v Tesco Stores Ltd [1976] 1 WLR 810distinguished.

This case highlights the difficulties both in bringing claims for accidents abroad and the impact of lack of expert evidence. It is almost invariably necessary to look at local standards and health and safety regulations that apply in the country where the accident occurs, as these understandably vary from country to country. Crucially the claimant’s application to adduce such evidence was refused which no doubt ended up contributing to the long running legal dispute.

Adam Dyl and Ellen Lucas, Anthony Gold